- (1.) The fourth respondent had filed an application on July 28, 1986 for registration of the trade mark 'HERO' (word) No. 457607 in Class 34 in India in respect of cigarettes, cigars, smokers articles, tobacco, on a "proposed to be used" basis. Subsequently, on October 13, 1993, the fourth respondent applied for registration of label trade mark HERO No. 609360 in Class 34 in respect of manufactured tobacco, again on "proposed to be used" basis. Soon thereafter, on May 13, 1994 to be precise, it filed Form TM-16 in application No. 609360 to change the user from "proposed to be used" to "the mark HERO is in use since 1942 and the present label is in use since September, 1993" and applied for registration of the trademark HERO CIGARETTES, STAR (DEVICE) bearing No. 627910 in Class 34 in respect of manufactured tobacco claiming user since September 1, 1993. In the meanwhile, however, the petitioner had applied for registration of label trade mark HERO No. 589487 in Class 34 in India in respect of cigarettes, kretek cigarettes, raw tobacco, manufactured tobacco, cigars, smokers articles, cigarette paper, matches, all included in Class 34 on "proposed to be used" basis on January 28, 1993. The petitioner opposed the application filed by the fourth respondent by filing an opposition thereto. A counter-statement was filed by the fourth respondent to which the petitioner responded by filing a reply. Evidence in support of the opposition had been filed by the petitioner but the fourth respondent chose not to file evidence in support of its application despite opportunity granted by the Registrar. Ultimately, by an order dated April 29, 2005, the Registrar allowed the opposition of the petitioner and refused registration, as prayed for by the fourth respondent. This order had been carried in appeal before the Intellectual Property Appellate Board (hereafter the IPAB for short) by the fourth respondent.
(2.) The IPAB by its order dated 31st October, 2011, while setting aside the order impugned, allowed the appeal preferred by the fourth respondent and permitted registration of the mark 'HERO' for its cigarettes. This order forms the subject matter of challenge in the instant writ petition.
(3.) Mr. Sarkar, learned senior advocate, appearing for the petitioner submitted that the impugned order of the IPAB being indefensible, the Court ought to interfere to set things right.;